By this single judgment, I intend to decide instant writ petition along with W.P.No. 8639, 8534 of 2011, 2858/2007 & 6573/2008, as all these writ petitions involve the same question of law. For the purposes of passing the judgment, the instant writ petition is being taken into consideration.
2. The petitioners are graduate English Teachers performing their duties under the Administrative Control of District Education Officer who after fulfilling all the codal formalities, were so appointed in the year 1995. Some of the equally placed school teachers filed appeals before the Punjab Service Tribunal seeking regularization of their services. The said Tribunal vide order dated 20.10.2002, ordered regularization of their services. In the same manner, similarly placed teachers filed appeal for regularization of their services as SST, which was also allowed by the learned Service Tribunal on 20.10.2002. The said judgments of* the Punjab Service Tribunal were assailed by the respondents by way of filing CPLAs No. 127, 4178, 4179, 4180-L 2002 before the Honourable Supreme Court of Pakistan and same were dismissed vide judgment dated 28.03.2003. Hence, the judgments passed by the PST were upheld.
3. Director (Administration) Director Public Instruction (SE) Punjab, Lahore vide Memo No. 7702/Admn.I(2) dated 03.05.2003, directed all the District Education Officers (SE) in the Punjab to implement the decision of the Honourable Supreme Court of Pakistan with a direction to the Administrative Heads to regularize the Graduate English Teachers while implementing the decisions of the Honourable Supreme Court of Pakistan and Punjab Service Tribunal. On 23.12.2004, the Special Secretary Schools, Punjab, Lahore published a policy/rules on the subject whereby all the Graduate English Teachers shall be treated as civil servants for all intends and purposes in terms of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. In pursuance of the Policy dated 23.12.2004, on receipt of the reference sent by DCO Khanewal, who chaired the meeting of DRC, Respondent No. 3 vide Letter No. 186-11 dated 18.06.2011 directed as follows (operative part):-- "In view of the above, it is directed to initiate proceedings under the PEEDA Act, 2006 against all these bogus appointees by their respective competent authority/DEO (EE-M/W). Further the name of the officers who issued their bogus appointment orders be intimated to this Department for proceedings them too".
The petitioners were also charged by the respondents and the description of charge is reproduced herein under:-- Sr.# Name of Teacher Date of appointmentCharge/Objection raised by the department.
1. Mushtaq Ahmad 30.11.1995 Name not included in DRC
2. Muhammad Tahir 02.09.1995 Name not included in DRC
3. Habib-ur-Rehman 02.09,1995 Name not included in DRC
4. Muhammad Younas02.09.1995 Third division plus name not included in DRC.
5.Mst. Qaisra Shaheen02.09.1995 Third division plus name not included in DRC.
6. Talat Roohi 29.08.1995 Name not included in DRC
7. Muhammad Yousaf02.09.1995 Name not included in DRG
8. Muhammad Arif 02.09.1995.Name not included in DRC
9. Mst.Safia Bibi 29.08.1995.Name not included in DRC 10.Muhammad Ameen Abid02.09.1995.Third division plus name not included in DRC
11. Rana Muhammad Mudassar02.09.1995.Third division plus name not included in DRC 12.Tayyab Mehmood02.09.1995.Third division plus name not included in DRC 13.Altaf Hussain 02.09.1995.Name not included in DRC 14.Muhammad Usman02.09.1995.Name not included in DRC The petitioners have impugned the said letter dated 18.06.2011 inter alia on the following grounds:--
(a) That as many as 18 persons, whose cases were exactly of the same nature, have been confirmed and exonerated of the same charge vide list dated 15.11.2007 issued by the District Education Officer (EE-M), Khanewal. The charges against the said persons were that they were holding the degree of B.A in third Division and their-names were not included in District Recruitment Committee (DRC).
(b) that in Multan Division as many as 28 persons from the male teachers, who were similarly charged, their services were regularized vide order dated 25.06.2007 by the order of District Education Officer EE-Male, Multan &;
(c) in case of 57 female teachers on the conclusion of inquiry report, the departmental authority dropped charges against them and their services were regularized by the District Education Officer (W-EE), Multan.
4. The petitioners have referred to an inquiry report arrived at by a three members Inquiry Committee addressed to the District Education Officer, Khanewal, in which following recommendations were made:-- "They are drawing their salaries regularly. There is no enquiry or any type of irregularity pending against them. They have their service books complete in all respect duly signed by the DDOs containing concerned documents. There is no break in their continuous service.
It is recommended that their cases may be put up before the DPC for regularization w.e.f. The date of their appointment. It was further suggested that these EET's should be advised to improve their division or have master degree within three years."
It was specifically mentioned in the inquiry report that the judgment of the Honourable Supreme Court of Pakistan provides full protection to the said EET's. In the same manner another inquiry report dated 03.08.2007 has been referred in which it was recommended that their cases may be put up before the DPC and they be considered for their promotion w.e.f date of their adjustment.
The above referred inquiries were based upon inter alia following allegations:- "(i) B.A third division &
(ii) Non inclusion of names in the approved District Recruitment Committee list.
It was recommended by the competent authority that the appointment made and issuance of appointment letters is the sole responsibility of the authority concerned in accordance with the legal procedure nor it rests upon the candidate who has only to submit his application for his appointment. The candidates have no concern whatsoever, but only to get their appointment letters signed by the authority from concerned office."
The observations made by the Inquiry Committee was based upon the relevant portion of the judgment of the Honourable Supreme Court of Pakistan which was reproduced in report:-- "It was the sole responsibility of appointing authority to fulfill codal formalities, so, the responsibility of shortcomings lies upon the authority and not upon the appellant"
Reliance has been placed on Province of Punjab through Secretary, Agriculture, Government of Punjab and others vs. Zulfiqar Ali (2006 SCM R 678), Secretary to Government of N.-W.F.P.
Zakat/Social Welfare Department, Peshawar and another vs. Sadullah Khan (1996 SCM R 413), Pakistan International Airlines Corporation through Chairman and others vs. Shahzad Farooq Malik and another (2004 SCM R 158), Administrator, District Council, Larkana and another vs. Ghulab Khan and 5 others (2001 SCM R 1320) and I.A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041).
5. I have given my anxious consideration to the contents of writ petition, all annexures and arguments advanced by the learned counsel for the parties.
6. Admittedly, some of the school teachers filed departmental appeals before the learned Punjab Service Tribunal (PST) for regularization of their service, which were allowed and the judgments of the learned PST was challenged before the august Supreme Court of Pakistan by way of filing CPLAs No. 127, 4178, 4179, 4180-L 2002. The said CPLAs were dismissed. Consequence there upon on 03.05.2003, the Director (Administration) Director Public Instruction (SE) Punjab, Lahore vide Memo No. 7702/Admn.I(2) directed all District Officers Education, Punjab to implement the decision of the Honourable Apex Court. Amazingly, the Secretary Schools Punjab, Lahore, on 23.12.2004, published policy/rules, in which it was declared that all the Graduate English Teachers shall be treated as civil servants for all intends and purposes in terms of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with Punjab Education Department (School Education)
Recruitment Rules, 1987, w.e.f. Date of joining respectively. Therefore, all the appointing/competent authorities were directed to take following actions:
(i) Graduate English Teachers will be treated as regular appointees from the date of joining subject to fulfillment of prescribed professional qualifications. They will be entitled for all services benefits as well, financial as admissible to a civil servant.
(ii) Service of only such Graduate English Teachers will be regularized who are presently in continuous service from the date of their appointment.
(iii) Those Graduate English. Teachers who were proceeded against under, E & D Rules or any other rules/law and have been removed/dismissed from service, cannot be considered for regularization, besides those Graduate Teachers who are facing proceedings under any law/rules will not be considered for regularization.
7. In the light of said Policy, DCO Khanewal chaired a meeting of District Recruitment Committee and directed the District Education Officer Khanewal to proceed. Against the Graduate English Teachers under the PEEDA Act, 2006, having procured their appointments in derogation of the criteria set for such appointments. Subsequent to the said decision, the petitioners were charged, hence this writ petition.
8. The above said policy seems to have been framed to frustrate the judgments passed by the learned PST and the Honourable Supreme Court of Pakistan. The policy was formulated just to enable the department to proceed against the Graduate English Teachers under the PEEDA Act, 2006, who were appointed back in the year 1995. Said exercise is not tenable in law. For all practical purposes, the petitioners as well as rest of the Graduate English Teachers were appointed on temporary basis, whose services were ordered to be regularized by the learned PST and the Honourable Supreme Court of Pakistan. According to the PEEDA Act, 2006, temporary or contract employees are not covered under the Act, ibid. Even otherwise, principle of law has been enunciated by the Honourable Supreme Court of Pakistan in a number of cases to the extent that any law or rule can only be given retrospective effect if the same is in benefit of an individual and not to his detriment.
9. Reliance could be placed on the judgments reported as Water and Power Development Authority, Lahore through Chairman and others vs. Haji Abdul Aziz and others (2012 SCM R 965) and Senior Member BOR and others vs. Sardar Bakhsh Bhutta and another (2012 SCM R 864). It is held that any amendment which deprives a person of his right has to be construed prospectively.
Moreover, it is by now a well settled principal of statutory interpretation that the insertion or deletion of any provision in' the rules or the law, if merely procedural in nature would apply retrospectively but not, if it effects substantial rights, which already stood accrued at the time when un amended rule or provision was in vogue. The impugned policy could only be valid to the extent of service benefits to the, petitioners as well as all Graduate English Teachers, but not to make them penalized under the PEEDA, Act, 2006 and Punjab Civil Servants (Appointment and Conditions of Service). Rules, 1974. Respondent No. 1 could have asked the concerned District Education Officers, Punjab, to scrutinize the particulars of the Teachers, but not to proceed against them under the PEEDA Act, 2006 as well as Punjab Civil Servants (Appointment & Conditions, of Service)
Rule, 1974.
10. In the light of the judgments passed by the learned PST and the Honourable Supreme Court of Pakistan on the subject, the petitioners as well as the other Graduate English Teachers could not have been proceeded against PEEDA Act, 2006, which was not applicable to them. The inquiry initiated against the present petitioners by the respondents is nullity in the eyes of law and in gross violation of the judgment passed by the learned PST and the Honourable Supreme Court of Pakistan.
11. The policy/rules dated 23.12.2004 framed by the Special Secretary Schools Punjab, Lahore, to the extent that the Graduate English Teachers shall be proceeded against with retrospective effect under the PEEDA Act, 2006 and the Punjab Civil Servants (Appointment & Conditions of Service)
Rules, 1974, is hereby set-aside. The initiation of inquiry against the petitioners by the respondents is also quashed and the respondents are directed to regularize the services of the petitioners and may be promoted in the next scale as recommended by the Director (Administration) Director Public Instruction (SE) Punjab, Lahore vide Memo No. 7702/Admn.I(2) dated 03.05.2003.
12. All the writ petitions are allowed in the above terms.